Surrogacy contracts or “Gestational Carrier Agreements” outline the rights of the surrogate mother and the intended parents. The main purpose is to protect both parties and set the framework for compensation. The agency and/or a lawyer will draft an initial contract and send it to the intended parents who will have the opportunity to discuss it with the agency and/or lawyer and make revisions. It will then be sent to the surrogate mother to approve and/or make revisions continuing this cycle until an agreement is reached. Depending on the state, provisions may differ but in New York and Michigan, it is actually illegal to enter into a surrogacy contract at this time.
The basic elements of a surrogacy contract include the names of all parties, date, and place of agreement, signatures as well as “bargained-for exchange” payment considerations, insurance details, medical proceedings, surrogate’s responsibilities, and legal parentage. As surrogacy is a many faceted process, there are many aspects to consider and discuss when creating and finalizing a surrogacy contract:
Payment- Compensation Paid to the Surrogate
- Schedule of payments and amount per installment
- Establish base fee plus additional/conditional fees such as payments for invasive procedures and cesarean sections, monthly expenses, multiple fetuses, maternity clothing allowance, lost wages if the surrogate works outside the home, bed rest, costs for childcare and/or housekeeping, etc.
- Full base fee should be deposited into a trust account before implantation
Insurance
· Specifics regarding the insurance coverage for the surrogate
· Term life insurance of at least $300,000 is often provided by the intended parents for the surrogate
Medical Proceedings and Decisions
- How many embryos will be transferred each time and number of IVF attempts both parties are willing to try
- Number of fetuses surrogate is willing to carry
- Agreed to terms regarding abortion and selective reduction
- Medical management plan in the event of a miscarriage
- Circumstances under which amniocentesis would be agreed to and requested
Gestational Surrogate’s Responsibilities
- Responsible for disclosing surrogacy to any and all involved medical professionals
- Abstain from alcohol and/or harmful substances
- Abstain from intercourse at certain times as agreed upon with intended parents: often 2 weeks before and after each transfer to ensure surrogate doesn’t become pregnant with her own child and/or contract an STD (both rare)
- Follow any and all of the IVF physician and/or obstetricians recommendations
- Pumping: do the intended parents want the surrogate to pump after birth/is she willing to and if so what is the agreed-upon payment and duration
Legal Parentage- establish the intended parents as the legal parents of the child
- Surrogate agrees to help in whatever manner necessary to get the intended parents’ names on the birth certificate
- Appointment of guardianship in the event the intended parents’ death before birth
- Stipulate no parental rights for the surrogate and her spouse
Communication and Privacy
- Intentions for communication between surrogate and intended parents during pregnancy: at least weekly is common
- Surrogate should agree to notify the intended parents at the first signs of labor and all contact numbers should be listed in the contract
- Waiving the right to medical confidentiality between parties and establishing the appropriate medical releases
- Establish allowance or disallowance for discussing details of surrogacy with media and/or sharing via social media
- Intentions for post-discharge contact including pictures
- Requests for recording or calling the intended parents during appointments if/when the intended parents are unable to attend
Additional Inclusions and Considerations
- Explicitly state that all parties have the right to independent counsel/legal representation
- Agree to psychological and sexually transmitted disease testing as well as drug testing and/or criminal background check
- HLA Paternity Testing if/when necessary
- Intended parents should agree to accept responsibility for a child born with birth defects
- Unique situations such as travel for IVF and/or birth, and/or under other circumstances including if/when the surrogate can be outside the state of birth
- What is expected during labor and delivery: generally intended parents are permitted to attend the delivery
- What if any post-delivery, in-hospital contact the surrogate will have with the child: generally traditional but not gestational surrogates will have such contact
A solid surrogacy contract ensures that both parties have a happy and rewarding experience. Our experts at Love & Kindness Surrogacy are here to help you through every step of creating and finalizing an agreement with your surrogate or intended parents. It’s a delicate process but we have years of experience making it as stress free as possible.
